The ASPCA’s Trojan Horse, Redux

New Yorkers: Please contact Rep. Amy Paulin and politely ask her to withdraw her bill, to cosponsor A. 7312 (Micah Kellner’s Companion Animal Access & Rescue Act), and to work to enact real and substantive reforms of shelter practices that are costing too many animals their very lives.

Once again, the ASPCA and its progeny have convinced Rep. Amy Paulin to reintroduce Assembly Bill 5449 in New York as an alternative to real shelter reform. Although some changes have been made, like last year, it doesn’t require shelters to do anything they find not “practicable.” In addition, while it asks shelters to work with rescue groups, it does not require them to do so, giving them discretion to deny rescue groups based on a wide range of unenforceable criteria and giving them the option of not working with any rescue groups outside of their county. This blog, written last legislative session about A.5449, still largely applies:

Pride and Prejudice in Shelter Reform
March 5, 2011

Ms. Elizabeth Bennet reading from Black’s Law Dictionary?

There is a word in the English language that you can go your whole life and never hear used in speech or in contemporary writing. The word is “practicable.” It is a throwback, the kind of word you might read in a Jane Austen novel: “Why my dear Miss Bennet, that sounds positively diverting, but is it practicable?”

It literally means capable of being done or reasonable, but there are so many alternatives to it—reasonable, feasible, practical—that no one uses it anymore. That is, no one outside the law. It survives today in the jurisprudence of this nation. You will find it in law where it has only one meaning: you do not have to do this if you don’t want to. Its singular purpose is to mollify opposition by enacting reform, but then providing a loophole big enough to drive the proverbial Mack truck straight through it.

When you read legislation and you see that dastardly word, you will know that the legislator is not serious about reform. You will know that the bill is meant to ride popular sentiment on an issue but not upset the powerful interests who are vested in the status quo. So you can have legislation, for example, that is called the “Climate Change Prevention Act.” It might have policy statements that sound ambitious: “Whereas, today climate change is threatening to destroy economies, cause species extinction, and result in irreversible harm to the planet and all living things.” It might then put the blame on use of non-renewable sources of energy. And then, in what sounds very promising in today’s political climate, it might “mandate that utilities must purchase 50% of their energy from renewable sources by 2015.” And you might think that this is something you can get behind. You will vote for this and vote for the legislator who introduced it. But wait, you search the text of the law, and there it is, one tiny word, the kiss of death that potentially renders the whole thing a paper tiger. It goes on to say, “if practicable.” In other words, if it isn’t too much trouble. And it always certainly is. Or we wouldn’t need a law to force them to do so in the first place.

The word “practicable” is a wink, a nod, a slight head tilt to special interests by legislators that no one really expects change, that those the law pretends to regulate will be able to continue doing what they have always done as long as they make the claim that following the law is not “practicable.” By then, the public will be mollified, they will go on to something else, be distracted by the next call to arms, and forget that the status quo has not been changed.

I’ve written elsewhere about the ASPCA’s Trojan Horse bill meant as an alternative to Oreo’s Law true right of rescue access. I’ve written how it gives the power to killing shelters to determine whether a rescue group is fit to save animals, how it says non-profit rescue groups are presumed guilty of wrongdoing, how shelters do not have to work with rescuers outside their own county, and how they have wide latitude to kill animals, such as a whining puppy, by claiming those animals are in “psychological pain” and therefore not subject to rescue.

But while the ASPCA may be trying to sabotage Oreo’s Law with fake reform, they knew we were watching, so they loaded their gift of a lump of coal with other provisions, with lots of shiny wrapping designed to entice people into supporting it. The Trojan Horse pretends to be a more comprehensive shelter reform bill, like the Hayden Law or the Delaware Companion Animal Protection Act, by including three new “requirements” for shelters, and through a campaign of distortion to label it “better than Oreo’s Law.” But is it?

According to the ASPCA and its supporters, the Trojan Horse bill will require shelters to make better efforts to return lost animals home. This is accomplished by requiring shelters to keep lost and found reports, scan for microchips and other means of identification, compare information on found animals with lost reports, and post the information on the internet to help people find their animals. It provides animals with veterinary care, shelter, food and water during the state mandated holding period. You would think shelters would do this anyway, but we know better. And it cleans up language about which animals can be killed immediately by changing current law which allows shelters to kill animals right away if they are “unfit for any useful purpose” to those animals “suffering irremediable physical or psychological pain” or to “alleviate a contagious, deadly health condition.”

Of course, these changes raise the issue of motive: Why didn’t they introduce these things before? And why did they choose to put them into a controversial law? The answer, of course, is that they didn’t care enough to do so and here, it serves a more useful purpose. They are looking to bait and switch. But that aside, the provisions, as expected, are riddled with loopholes.

I’ve written before that the term “psychological pain” is capable of wide interpretation. A puppy who whines can be said to be in “psychological pain” and thus put to death, even when non-profit rescue organizations are willing and able to save him. And puppies whine all the time because, quite simply, that is what puppies do. In addition, a shelter could claim that URI in the shelter is a non-rehabilitatable condition that is “contagious” and “deadly” and thus kill kittens with colds, even though a bit of time and space, and perhaps a course of antibiotics, is all it takes to cure them. (This is what shelters in California did after the Hayden Law was passed. In the absence of a strict definition, they also claimed animals with conjunctivitis were “irremediably suffering,” as were animals with diarrhea.)

But it gets worse. In fact, shelters do not have to do any of the things the bill says they do. Why? That dastardly loophole: “practicable.” At the same time that the ASPCA Trojan Horse says shelters should post information on found animals to the internet to help people find their lost pets, it turns around and gives them an out:

“The notice required by this paragraph may be made by means other than the internet if use of the internet is impracticable.”

While the bill claims it requires posting of photographs, this is also so only “if practicable.”

When dealing with shelter directors who find killing easier than doing what it takes to stop it, it is never practicable. For example, the New York City pound system recently stopped matching lost with found animals by eliminating the staff responsible for that duty. Would they have to start if the ASPCA bill passes? They would not. Since they do not have staff to do so, it would not be “practicable.” If a shelter does not have a website or a digital camera, how can they post photographs of stray animals to the internet? It would not be “practicable.” The status quo will remain the status quo.

We can’t allow the continued killing of 25,000 animals because of the intractable pride of the ASPCA which is trying to save face for their killing of an abused dog. And we accept their Trojan Horse of a bill only at great prejudice to our lifesaving efforts. What New York animals, rescuers, and animal lovers need is true rescue access. They need posting to the internet, veterinary care, and transparency not when someone says it is “practicable,” but as a matter of right. In short, they need real shelter reform.

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The views expressed in this blog are solely the opinions of the writer and no one else, nor any agency or organization. The author is an attorney and notes that the communications are protected by the First Amendment to the U.S. Constitution. Any attempt to infringe on that right, whether actual or threatened, will be considered a strategic lawsuit against public participation.